The Governor’s Office of Planning and Research (“OPR”) has spent five years drafting a comprehensive update to 30 sections of the California Environmental Quality Act (“CEQA”) Guidelines.[1] The updated text[2] (“Final Text”) ensures the Guidelines are consistent with recent court decisions, implements legislative changes, clarifies rules governing the CEQA process, and eliminates duplicative analysis. Several changes to the Guidelines address two hot button topics: global climate change and statewide affordable housing shortages. During the deliberative process, the Agency also released its “Final Statement of Reasons for the Regulatory Action Amendment to the State Guidelines” to give more history and context to each change to the Final Text.[3]
Critical Habitat Must Be Habitat for Listed Species, Supreme Court Says
An area designated as critical habitat under the Endangered Species Act must first qualify as “habitat” for listed species, the Supreme Court held this week in the closely watched Weyerhaeuser case. The Court’s November 27, 2018 ruling, which reversed a decision by the Fifth Circuit, has the potential to narrow federal agencies’ discretion to designate as critical habitat areas that are currently unoccupied by endangered or threatened species, but the opinion leaves important questions to be answered by the lower courts – including the meaning of “habitat.” The Court also held that agency decisions not to exclude specific areas from a critical habitat designation on economic grounds are subject to judicial review, reversing the Fifth Circuit and overturning the current law in the Ninth Circuit. Continue Reading
Battle for Rent Control May Not be Over
In the months leading to the election, cities and counties began to adopt resolutions and other measures to advance potential rent control measures. In Los Angeles, the City Council approved a Resolution in support of Proposition 10 by a vote of 13-1 last month. The Resolution highlighted the increasingly high rental rates in the area and across California that have created a severe housing affordability crisis. The San Francisco Board of Supervisors approved a similar Resolution in support of Proposition 10 acknowledging the opportunity for policymakers to confront the housing affordability crisis by expanding rent control. On Tuesday, voters defeated Proposition 10 by a vote of 65% to 35%. Notwithstanding this defeat, we anticipate that local governments will continue to explore ways to address housing affordability, including rent control, as a policy priority concern. Continue Reading
California Housing Legislation (2017-2018)
State lawmakers passed over 1,200 bills this year, the most in more than a decade according to sources. Governor Brown signed 1,016 into law as of September 30th. Below is a summary of the bills signed into law regulating the planning and development of housing. The majority will take effect on January 1, 2019. Continue Reading
Ninth Circuit Determines That George Costanza Was Right!—In Limited Circumstances, Whales And Seals Are Fish (Not Mammals)
Posted in Environmental, Recent Cases - EnvironmentalMakah Indian Tribe, et al. v. Quileute Indian Tribe et al., 813 F.3d 1157 (9th Cir. 2017).
Defying the universal notion that whales and seals are, in fact, mammals, the Ninth Circuit recently affirmed in part, and reversed in part, the Western District Court of Washington’s judgment determining that such species qualify as fish in limited circumstances relating to tribal fishing rights in western Washington. Id. at 1159. While the direct determination that the use of the word “fish” may occasionally include some marine mammals may not be universally enlightening, this case painstakingly details the rules to be utilized when interpreting sovereign treaties—a tool helpful to almost any jurisdiction. (The opinion also quotes from the television show “Seinfeld,” validating George Costanza’s proclamation that whales are fish.) Continue Reading
Ninth Circuit Finds District Court Sharply Deviated from Existing Authority on CERCLA Cleanup Costs Between Military Contractor and U.S. Government When it Allocated 100 Percent of Liability to Military Contractor
Posted in Environmental, Recent Cases - EnvironmentalTDY Holdings v. United States, et al., 872 F.3d 1004 (9th Cir. 2017).
TDY brought suit for contribution under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against the U.S. government relating to environmental contamination at TDY’s manufacturing plant. The district court granted judgment in favor of the government after a 12-day bench trial and allocated 100 percent of past and future CERCLA costs to TDY. On appeal, the Ninth Circuit held that the district court sharply deviated from the two most “on point” decisions regarding allocation of cleanup costs between military contractors and the U.S. government when it determined the cases were not comparable, clarified the applicability of those cases, and remanded the case to reconsider the appropriate allocation of cleanup costs between TDY and the U.S. government. Continue Reading
Ninth Circuit Holds National Park Service Has the Authority to Regulate Navigable Waters in Alaska’s National Parks and Prohibit the Use of Hovercraft (Again)
Posted in Environmental, Recent Cases - EnvironmentalSturgeon v. Frost, et al., 872 F.3d 927 (9th Cir. 2017).
In September 2011, moose hunter John Sturgeon brought an action against the National Park Service (“Park Service”), alleging it inappropriately banned him from using a hovercraft to hunt moose on the Nation River in the Yukon-Charley Rivers National Preserve (“National Preserve”). Id. at 929. On remand from the Supreme Court, the decision analyzes which entity is permitted to decide this matter after the Supreme Court rejected an earlier circuit decision supporting the ban. The court’s ruling affirms congressional intent to permit Park Services authority to manage navigable waters in Alaska’s national parks, especially those parks meant to preserve wild rivers, and describes the balance between state and federal jurisdiction. Continue Reading
After 9th Circuit Ruling in Hawai‘i Wildlife Fund v. County of Maui, EPA Considers ‘Clarifying’ Clean Water Act Coverage for Discharges Via Groundwater
A recent Ninth Circuit ruling that pollutants reaching waters of the United States through groundwater may trigger Clean Water Act liability has prompted the U.S. EPA to consider clarifying its position on the subject. The Ninth Circuit held last month, in Hawai‘i Wildlife Fund v. County of Maui, that the Act applies to “indirect discharges” from point sources, such as wells, that eventually make their way to surface waters. Though the Ninth Circuit is not the first federal court to hold that indirect discharges require a permit under the Act, the EPA responded by seeking public comment on whether it should clarify previous statements addressing this topic. The County of Maui subsequently filed a petition on March 1 for en banc rehearing of the Ninth Circuit panel’s opinion. Continue Reading
California Legislation Guide for Developers
Posted in New Rules and LegislationLast fall, Governor Jerry Brown signed into law a package of 15 bills in response to the state’s housing shortage and affordability crisis. These bills came into effect on January 1st, 2018. The bills have important implications for development projects in California. Here’s what the latest legislation means for your projects: Continue Reading
Under the Radar Changes to Proposition 65 – OEHHA Issues New “Guidance” For Web Purchases (Is it an Illegal “Underground Regulation”?)
Posted in EnvironmentalIf your products are sold online or you operate a website with sales to consumers in California, these changes will impact whether you can obtain “safe harbor” protection under Prop 65.
Over a year after adopting new regulations—which were crafted through an exhaustive 3 year rulemaking process of public workshops, public comments, and revisions to address stakeholders’ concerns—California’s OEHHA (Office of Environmental Health Hazard Assessment) issued a guidance document purporting to change the answer to the question of whether a website warning is sufficient to qualify for “safe harbor” protection or whether a separate type of warning must be provided to the consumer in addition to the website warning. OEHHA, the state entity charged with managing Prop 65, quietly changed its position on the subject and offered so-called “guidance” that imposes much more onerous obligations. If you have already assessed whether you company is in compliance and ready for the new regulations, you should consider reviewing them again. Continue Reading
